United States v. Diggs, 988

• Decision Date: 08 May 1974
• Docket Number: No. 988,Docket 73-2793.,988
• Citation: 497 F.2d 391
• Parties: UNITED STATES of America, Appellee, v. James DIGGS, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

497 F.2d 391 (1974)

UNITED STATES of America, Appellee, v. James DIGGS, Appellant.

No. 988, Docket 73-2793.

United States Court of Appeals, Second Circuit.

Argued April 18, 1974.

Decided May 8, 1974.

Sheila Ginsberg, New York City (William J. Gallagher, The Legal Aid Society, Federal Defender Services Unit, New York City), for appellant.

John N. Bush, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S.D.N.Y., John D. Gordan, III, Asst. U. S. Atty., of counsel), for appellee.

Before KAUFMAN, Chief Judge, CLARK, Associate Justice,^* and SMITH, Circuit Judge.

J. JOSEPH SMITH, Circuit Judge:

James Diggs, convicted and sentenced on trial to the jury in the United States District Court for the Southern District of New York, Milton Pollack, Judge, appeals on two grounds, admission into evidence of a statement obtained in violation of his right to counsel, and admission of evidence of earlier police observation of appellant and his alleged corobbers. We find no error and affirm the judgment.

New York police officers observed Diggs and two companions looking into parked cars, store windows and a branch bank. One entered the bank, came out, joined the others and engaged in conversation with them for some ten or fifteen minutes across the street from the bank. One then re-entered the bank, the second stood outside and Diggs went to a taxi stand. When the apparent lookout waved, Diggs attempted to engage a cab, was unsuccessful, hurried off and was pursued and apprehended by police.

The other two robbed the bank of $700 and left the area without Diggs.

After a statement later suppressed, Diggs was given Miranda warnings and interrogated by police. He eventually admitted knowing the two robbers, but denied knowledge of the robbery plan. The next day he was taken to the state criminal court where he was lodged in a detention cell. There, after further Miranda warnings¹ by F.B.I. agents he was asked for the names of the two robbers. His response was, "What can you do for me if I tell you who the two fellows were who went in the bank?" At this point an attorney who had been appointed for Diggs in the state court proceedings appeared and objected to questioning in his absence.

At the trial, the above statement by appellant was placed in evidence, with testimony of the observations of the officers, conflicting statements by the two robbers as to Diggs' involvement, and testimony of a New Jersey officer that he had observed Diggs with the other two often over a period of some six years.

The government contends that the present objection to the use of Diggs' statement as in violation of his right to counsel was not sufficiently brought to the attention of the trial judge and so is not now available under United States v. Indiviglio, 352 F.2d 276, 278-280 (2d Cir. 1965) (en banc), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966). The testimony at the suppression hearing, particularly emphasizing the outrage of counsel when he appeared on the scene, makes any such claim dubious, however. Nor do we consider that the fact that Diggs was charged on state rather than federal charges at the time of the interrogation deprived him of his right to counsel at the federal interrogation, for here in contrast to United States v. Dority, 487 F. 2d 846 (6th Cir. 1973), relied on by the government, the state and federal charges were for the same crime, the federal people knew it, and should have known of his situation as to counsel.

But here a finding of waiver is fully justified. Diggs had been advised of his rights at least three times, twice by the police and once by the F.B.I. agents.² Moreover, the content of the statement was similar to the position he had by then adopted in his statement to the police after proper warnings, and persisted in through the trial, that he knew the other two, but was not a participant in the robbery. This was not inconsistent with the statement's voluntariness. We find no error in the admission of the statement. See United States v. Barone, 467 F.2d 247, 249 (2d Cir. 1972).³

The contention that admission of the New Jersey police testimony is reversible error is without merit. The evidence was admissible to show close acquaintance of Diggs with the others. It contained no direct evidence of other criminal activity, nor indeed any substantial grounds for inference of any.

Affirmed.

* United States Supreme Court, retired, sitting by designation.

1 Diggs claims that the Miranda warnings given by the F.B.I. agents were insufficient solely for the reason that he was not expressly advised he had the right to counsel during the immediate interrogation. We recently disposed of a virtually identical claim in United States v. Floyd, 496 F.2d 982 (2d Cir. 1974), there enunciating the rule which unquestionably governs in this circuit :

We have held that "words of Miranda do not constitute a...